High Court Rules on Native Title

On 12 March 2025, the High Court of Australia handed down its decision in the native title matter of the Commonwealth of Australia v Yunupingu. The decision is being celebrated as a victory for traditional owners, to whom the government must now pay compensation for past bauxite mining carried out at Gove in the Northern Territory.  This page outlines the High Court’s decision and its implications.  

Legislation

The decision was made under constitutional law and under the Native Title Act 1993.

The Australian Constitution gives the Commonwealth government power to acquire land ‘on just terms’ from a state or person (section 51). It also gives the Commonwealth the power to make laws for a territory of the Commonwealth (section 122).

Under the Native Title Act 1993, compensation is to be paid when native title rights are impaired or taken away.   

The Federal Court decision

In 2023, the Full Court of the Federal Court decided unanimously that native title amounts to ‘property’ within the meaning of section 52 of the Constitution.

The case concerned two applications made by the estate of the late Dr Yunupingu under section 61 of the Native Title Act 1993 on behalf of the Gumatj clan of the Yolgnu people.

The first application sought a finding that the Gumartj clan were the traditional owners of the Gove Peninsula.

The second application sought compensation for the impacts on that land of activities attributable to the Commonwealth government between 1911 and 1978 that interfered with the clan’s native title rights. These activities included the establishment of a religious mission and mining for bauxite, which was authorised during the 1930s and 1960s without the clan’s consent.

The main two issues before the court were:

• whether laws enacted under section 122 of the Constitution are exempt from the ‘just terms’ requirement; and
• whether the relevant grants and acts were incapable of amounting to ‘acquisitions of property’ within the meaning of section 51 of the Constitution

The Federal Court answered ‘No’ to both of these questions. It found that the ‘just terms’ requirement does apply to laws enacted under section 122 of the Constitution and that native title rights and interests do amount to property for the purposes of section 51.

The Commonwealth Appeal

The Commonwealth government appealed against the Federal Court’s decision on three grounds.

Firstly, it argued that native title rights cannot be transferred and therefor cannot be acquired.

Secondly, it argued that the ‘just terms’ guarantee did not apply to the territories, except in specific circumstances.

Finally, it argued that it took ownership of the minerals at Gove prior to the enactment of the Constitution by granting leases that reserved all mineral rights for the Crown.

The High Court rejected all three arguments.

Implications of Commonwealth of Australia v Yunupingu

The decision has been called one of the most important native title decisions since the Mabo case of 1991. It means that the Commonwealth government may now be liable for up to $700 million in compensation for bauxite mining at Gove.

Compensation was first awarded under the Native Title Act in 2019. This decision expands the range of acts for which traditional owners may seek compensation. As the decision applies to territories, it will have implications for the ACT as well as for the NT.

Responses to the High Court decision

Gumatj leaders celebrated after the decision was announced, saying that justice had been served for their people. The decision was also described as a “victory for decency, common sense and the rule of law”.

The Attorney General, Mark Dreyfus said, “This decision clarifies the constitution’s application to those issues for parties to this and future matters.”

The native title application, which Dy Yunupingu filed at the same time as the compensation case, has not yet been decided.  

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